BRET D. JOHNSON and SEAN B. JOHNSON, Plaintiffs,
STOJAN LAW OFFICE, P.C., and CLARK J. STOJAN, Defendants-Appellees (Bret D. Johnson, Plaintiff-Appellant).
Rehearing denied February 22, 2018
from the Circuit Court of Rock Island County, No. 14-L-90;
the Hon. Joseph F. Fackel, Judge, presiding.
J. McAndrew and Kaitlyn Anne Wild, of Rathje & Woodward,
LLC, of Wheaton, and Stephen T. Fieweger, of Davenport, Iowa,
for Appeal appellant.
Matthew R. Henderson and Adam R. Vaught, of Hinshaw &
Culbertson LLP, of Chicago, for appellees.
JUSTICE O'BRIEN delivered the judgment of the court, with
opinion. Presiding Justice Carter and Justice McDade
concurred in the judgment and opinion.
1 Plaintiff Bret Johnson (Johnson) brought this legal
malpractice action against defendants Stojan Law Office,
P.C., and Clark Stojan, which had drafted trust documents and
a trust amendment for Johnson's mother, Jean Sztajer. The
complaint alleged Stojan breached various duties it owed
Johnson, who had been a successor co-trustee of the trust.
Stojan moved for summary judgment, arguing it had no duty to
Johnson. The trial court denied the motion, but on
reconsideration, granted summary judgment in Stojan's
favor, finding Stojan owed no duty to Johnson. The trial
court also denied Johnson's motion for leave to file a
second amended complaint. Johnson appealed. We affirm.
3 Jean Sztajer, mother of Sivi Polit and plaintiffs Bret
Johnson and Sean Johnson, retained defendants Clark Stojan
and Stojan Law Office, P.C. (collectively, Stojan), to draft
a living trust. Sztajer executed the trust on May 31, 2001.
The trust provided, in part, that Sztajer had the right to
amend or modify its terms without the consent of any trustee
or beneficiary. It granted the trustee the authority to
appoint an agent or attorney-in-fact with all the powers of
the trustee. The trust provided the grantor the right to
remove any trustee and appoint successor trustee(s), with
written notice to the trustee(s) to be removed and appointed.
The trust named Sztajer's three children as successor
co-trustees in the event of Sztajer's death,
incompetency, disability, or other inability to act.
4 Sztajer retired in 2008 from her position as a professor of
accountancy at Augustana College. She started to suffer from
cognitive deficits, which worsened over the years. In January
2010, she was evaluated by a clinical neuropsychologist, who
diagnosed Sztajer with mild stage Alzheimer's disease and
referred her for another evaluation in a year. In August
2010, Sztajer's primary doctor diagnosed her as suffering
from "Alzheimer's Dementia with Behavioral
Disturbance." On November 12, 2010, Sztajer executed a
special power of attorney for property, which Stojan drafted,
naming Polit as Sztajer's agent as trustee of the trust.
The family began discussing Sztajer's care around
Thanksgiving 2010, and discussions continued into the new
year. In January 2011, it was decided that Polit should take
over Sztajer's care. A series of emails documents the
conversations between Sztajer's children and Stojan
regarding this decision. As part of the plan, Sztajer moved
in with Polit in February 2011, with Polit to be paid from
the trust for her caregiver services.
5 A January 2011 follow-up evaluation by the clinical
neuropsychologist indicated that Sztajer had experienced
"significant decline in memory, naming, and visuospatial
skills" from the visit a year earlier but the impairment
in Sztajer's executive functioning had not changed from
the prior January 2010 visit. Profound impairment in
Sztajer's episodic memory was noted.
6 On March 23, 2011, Sztajer visited Stojan and executed an
amendment to the trust, which removed Sean Johnson and Bret
Johnson as successor co-trustees and named them as second
successor co-trustees. Polit was named the sole successor
trustee. Sztajer also signed a letter of direction to Polit
concerning trust distributions. Stojan signed an affidavit
averring that he drafted the letter of direction and trust
amendment at Sztajer's direction, that he discussed the
documents in confidence directly with Sztajer, and that Polit
played no role in preparing the documents. In his deposition,
Stojan stated that Sztajer told him she was concerned about
her sons' response to the changes in the trust and she
asked him not to inform them of the changes. According to
Stojan, Sztajer was competent to conduct her affairs on March
23, 2011. Polit also testified at her deposition that she had
no concerns about Sztajer's competency in March 2011. The
doctor treating Sztajer for her Alzheimer's disease
opined, following an evaluation in May 2011, that Sztajer was
competent to make significant life decisions.
7 In late 2012, Johnson and his brother began to question
disbursements from the trust. They complained to the Illinois
Department on Aging, and in early 2013, an investigation into
financial exploitation was conducted. The investigation
terminated for lack of sufficient evidence. Sztajer died on
November 6, 2013. In July 2014, Johnson and his brother filed
this action, alleging professional negligence and common law
fraud. In January 2015, they filed a first amended complaint,
alleging legal malpractice against Stojan and Stojan Law
Office. Stojan moved for dismissal, arguing it owed no duty
to Johnson and his brother. The trial court denied the
motion, and the case was consolidated for discovery purposes
with a separate action filed by Johnson and his brother
against Polit. In April 2016, Sean Johnson was dismissed from
this case with prejudice.
8 In May 2016, Stojan moved for summary judgment. Following a
hearing, the trial court denied Stojan's motion. Stojan
moved for reconsideration, which the trial court granted. The
court entered summary judgment in favor of Stojan, finding
Stojan did not owe a duty to Johnson. Johnson moved for
reconsideration of the summary judgment order and sought
leave to file a second amended complaint. The second amended
complaint included a legal malpractice ...